EFTA00723408.pdf

KIRKLAND & ELLIS LLP MEMORANDUM CONFIDENTIAL TO: ADA Lisa Friel, Chief, Sex Crimes Unit ADA Jennifer Gaffney, Deputy Chief, Sex Crimes Unit ADA Patrick Egan, Sex Crimes Bureau and Trial Bureau 40 FROM Jay P. Lefkowitz, P.C. Matthew Solum Sandra Lynn Musumeci DATE October 5, 2010 SUBJECT: SORA Determination for Jeffrey E. Epstein, NYSID # OSI909, Supreme Court Case # 30129-2010 New York's Sex Offender Registration Act (SORA), Correction Law § 168 et aL is intended to impose the most stringent reporting requirements on those sex offenders most likely to reoffend and cause the most grave harm to society, while imposing less restrictive (but still substantial) reporting obligations on those persons convicted of a qualifying sex offense who pose less danger to the People of the State of New York. Those offenders deemed most likely to reoffend, as well as "sexually violent offenders," "predicate sex offenders," and "sexual predators," are generally categorized as Level 3 and are accordingly subjected to a lifetime of frequent and invasive reporting and public dissemination rules. From there, the scale slides down to those who pose a "moderate," but perhaps less grave, risk of reoffending at Level 2, where offenders remain subject to public dissemination of personal information and a just slightly less rigorous lifetime of registration with law enforcement officials. Finally, those offenders whose transgressions, though serious, are less profound and who are deemed to pose a lower likelihood of reoffense are subject under SORA to the still rigid, though slightly less intrusive, reporting requirements of Level I. Jeffrey Epstein, a 57-year old financial advisor and philanthropist who is required to register by virtue of a single conviction for a prostitution-related offense, who maintains his primary residence in Florida but owns a vacation home in Manhattan, and who has never before been convicted of a crime, clearly belongs in this latter category. Given Mr. Epstein's history and personal characteristics, the circumstances of the offense which triggered the registration requirement, his acceptance of responsibility, his successful completion of a jail sentence and subsequent supervision in Florida, and the extraordinary improbability that he will ever re-offend in any state, much less New York, Mr. Epstein's categorization under SORA should be properly adjudged as Level 1. K&E 17760332.2 EFTA00723408  KIRKLAND & ELLIS LLP I. SORA Is Designed to Impose the Most Stringent Reporting Requirements Upon Those Posing the Greatest and Most Likely Threat to the Public SORA is not intended to be punitive, but rather, is a protective mechanism designed to shield the public by imposing the heaviest reporting burdens on those individuals most likely to reoffend and cause grave harm if they do reoffend. Accordingly, the three levels of reporting -- which dictate the depth and frequency of an individual's reporting to law enforcement and the degree to which such information may be disseminated to the public -- are based upon an assessment of the offender's "danger to the community": Level 1 (risk of repeat offense is low), Level 2 (risk of repeat offense is moderate), and Level 3 (risk of repeat offense is high). See Correction Law §168-k(2), §168-1(1), (2), (3). In crafting SORA, the Board clearly contemplated that offenders should be categorized based on consideration of two separate, forward-looking factors: "risk of a repeat offense" and "threat posed to the public safety." Correction Law § 168-1(5) (emphasis added). Indeed, the Commentary to SORA's Risk Assessment Guidelines states this principle explicitly and provides helpful amplification: As the Act makes clear, the threat posed by a sex offender depends upon two factors: (i) the offender's likelihood of reoffense and (ii) the harm that would be inflicted if he did reoffend. Some offenders repeatedly reoffend, but the harm they inflict, which not insubstantial, is less grave. Others may pose a lesser likelihood of recidivism, especially if properly supervised, but the harm would be great if they were to reoffend. The sex offender whose modus operandi is to rub himself against women in a crowded subway car generally falls into the former category; the child molester into the latter. The guidelines seek to capture both these elements -- the probability of reoffense and the harm therefrom -- in determining an offender's risk level. It is important to note that the risk level seeks to capture not only an offender's risk of reoffense but also the harm posed by a particular offender should he reoffend. Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Commentary (2006) at 2, ¶ 1. Reading between the lines, the Commentary makes clear that the SORA Guidelines are intended to differentiate between relative risks posed by those who have committed qualifying sexual offenses; designating a person as a Level 1 is not tantamount to condoning that person's past misconduct, but merely is a recognition that the person poses a low risk of committing future crimes, and any transgressions that such person might commit in the future, however improbable, are unlikely to cause the same grave societal harm as, for example, a sexually violent offender or abuser of young children. 2 K&E 17760332.2 EFTA00723409  KIRKLAND & ELLIS LLP In short, the Guidelines make clear that where a person's misconduct falls toward the less egregious side of the sexual offense spectrum and where the person poses a low risk of reoffense, the proper SORA adjudication is Level 1. As set forth further below, that is precisely where Jeffrey Epstein belongs. Il. Jeffrey Epstein Poses Little to No Threat of Reoffending or Causing Harm to the Public Safety of the People of the State of New York A. Degree of Harm to Society Without minimizing the seriousness of the offenses to which Jeffrey Epstein pleaded guilty in Florida, it must be noted that Mr. Epstein's crimes did not inflict any actual harm on his "victims," and when considering the range of reportable sex offenses under SORA, imposed relatively minimal harm on society at large. The offense for which Mr. Epstein is required to register under SORA -- a June 30, 2008 plea in the Circuit Court for Palm Beach County, Florida under an Information to the charge of Procuring a Person Under 18 for Prostitution, in violation of Fla. Stat. § 796.03' -- did not involve assault, force, or violence of any sort. Rather, the conviction stemmed from consensual conduct that ended nearly five years ago, when Mr. Epstein received massages and engaged in sexual touching in exchange for money with a young woman ("AD") who was over age 17 for all but two of the fourteen months during which the acts of prostitution occurred. Mr. Epstein did not engage in sexual intercourse with the woman while she was under 17, nor did he ever force himself or any particular contact or activity upon AD. At no time (whether before or during their interactions) did Epstein exercise any supervisory or other position of authority over her, nor did she suffer from any mental disability, incapacity, or physical helplessness. Instead, AD voluntarily came to visit Mr. Epstein at his Florida home on various occasions on her own accord for the purpose of participating in what she apparently viewed as a lucrative business transaction. Indeed, in addition to engaging in sexual conduct for money, in her statement to police, AD acknowledged her own complicity in promoting prostitution by encouraging others to engage in prostitution so that she could also earn finder's fees for herself.2 Jeffrey Epstein's offense ranks among the least serious of those triggering SORA registration under New York law. Indeed, Mr. Epstein pleaded guilty to patronizing AD for prostitution from August I, 2004 and October 9, 2005 (the day before AD's 18th birthday), and for one year of those fourteen months, AD was a consenting adult under New York law. See P.L. § 130.05(3)(a). Thus, the vast majority of conduct which constituted the offense for which Mr. Epstein was convicted in Florida would not have triggered any SORA registration I Jeffrey Epstein concurrently pleaded guilty to an Indictment charging him with one count of Felony Solicitation for Prostitution, Fla. Stat. § 796.07(2)(f), (4)(c). This charge does not involve any allegations of sexual contact with underage women and is not a registerable offense under Florida law. See Fla. Stat. § 943.0435. 2 Based on her own account, AD engaged in this prostitution recruitment activity when she was 17, beyond the age of consent under New York law. 3 K&E 17760332.2 EFTA00723410  KIRKLAND & ELLIS LLP requirement if committed in New York under the law in effect at 2004 and 2005 (the period of the conduct at issue),3 and even today, is only registerable where the woman patronized for prostitution is under age seventeen. See Correction Law § 168-a(2)(a)(i) (stating that § 230.04 is a registerable offense "where the person patronized is in fact less than seventeen years of age"). Given all of these considerations, Mr. Epstein's behavior, while certainly wrong and obviously criminal under both the laws of New York and Florida, just barely falls within the range of conduct viewed as sufficiently harmful to trigger SORA registration requirements. B. Risk of Reoffense With respect to the second factor in a SORA assessment, Jeffrey Epstein presents little to no risk of committing further sexual offenses. Indeed, the reasoned opinion of a psychological expert who has worked with Mr. Epstein, the permissiveness shown by law enforcement agencies supervising him, and the relative leniency demonstrated by other jurisdictions exercising authority over him since his conviction all support the conclusion that Jeffrey Epstein has demonstrated himself to be a person worthy of trust and presenting little to no threat of reoffense. First, the decisions made by numerous law enforcement agencies in Florida, where Jeffrey Epstein was convicted of the instant offense, served his sentence, and currently spends most of his time, as well as the outcomes of those decisions, are instructive and lend strong support to the notion that Jeffrey Epstein poses little risk of reoffense. First, the Palm Beach County Sheriff's Office, which had custody of Mr. Epstein during his year of incarceration, approved Mr. Epstein for that office's work release program and permitted him to leave the jail and report to work on a daily basis from October 2008 until his release in July 2009. See Letter of Deputy K. Smith of August 12, 2010 (Exhibit A). While serving his year of probation, both the Circuit Court in Palm Beach and Mr. Epstein's assigned probation officer regularly granted Mr. Epstein's requests for permission to travel briefly outside Florida for business purposes. See, e.g., Order of Circuit Court of the Fifteenth Judicial Circuit for Palm Beach County of December 18, 2009 (Exhibit B) (allowing Epstein to travel overnight on weekdays for business pending 48-hour notice and approval of his probation officer). Mr. Epstein successfully complied with the all of the restrictions imposed on him and completed his incarceration and probation without incident. Perhaps more significantly, Florida -- the state where Jeffrey Epstein was actually convicted of the prostitution offense that obligated him to register as a sex offender under Florida law and where Mr. Epstein spends the bulk of his time -- designated Mr. Epstein as the lower of two levels of sex offender under that state's sex offender registration act. See Letter of Jack A. Goldberger to New York State Division of Criminal Justice Services, August 12, 2010 (Exhibit 3 The nearest cognate crime under New York law in 2005 was Patronizing a Prostitute in the Third Degree, P.L. 230.04, a misdemeanor, which only criminalized prostitution between a "john" over twenty-one years of age and a prostitute less than seventeen years of age." 4 K&E 17760332.2 EFTA00723411  KIRKLAND & ELLIS LLP C); see also Fla. Stat. § 775.21 (Florida sexual predator statute), § 943.0435 (Florida sexual offender statute). Even more tellingly, Florida then imposed upon Mr. Epstein the most minimal of reporting requirements under that sex offender designation, requiring him to report to Florida authorities only two timesper year. See Letter of Jack A. Goldberger to New York State Division of Criminal Justice Services, August 12, 2010 (Exhibit C). Similarly, New Mexico (another state where Mr. Epstein owns a residence) has determined that it will not require Mr. Epstein to register at all under its sexual offender reporting statute, notwithstanding his Florida conviction and the conduct alleged in connection therewith. See Letter of Peter Schoenburg to Martin G. Weinberg, August 18, 2010 (Exhibit D); see also NMSA 1978, § 29-11A-3(E). [Do we have the letter from Ms. Chacon in NM Department of Public Safety?] [Is Epstein required to register in US Virgin Islands? What is the status of that'l] This confidence in Jeffrey Epstein's ability and desire to lead a law abiding life is further echoed in the words of the clinical psychologist who has worked with Mr. Epstein following his arrest/conviction for the instant offense [when did JE begin with therapy?]. That doctor, Stephen R. Alexander, Psy.D., has praised Mr. Epstein's cooperativeness, self-reflection, and receptiveness to treatment throughout their sessions. Drawing from his observation and interaction with Mr. Epstein in therapy, as well as his own considerable experience as a forensic psychologist, Dr. Alexander opined: Relying upon my 25 years of experience as a forensic psychologist and the plethora of data gathered by me, I state with confidence that Mr. Epstein poses no threat to himself or the community. It is abundantly clear that he has learned his lesson and the probability of his reoffending is negligible. Mr. Epstein poses no threat to either himself or the general community, and he requires no additional intervention or treatment for his no-risk/low-risk status to be maintained into the future. Letter of Stephen R. Alexander, Psy.D. to Jack Goldberger, Esq., August 16, 2010 (Exhibit E). Thus far, this has proven to be correct, as there have been no instances of criminal or sexual misconduct of any type since Mr. Epstein's plea to the instant offenses in 2008. Finally, Mr. Epstein has a remarkable personal history which further compels the conclusion that he is unlikely to ever violate the law again. Discovering a love of math and science as a young man, he worked his way up from being a college drop-out from a middle- class Brooklyn neighborhood to become a highly successful financial advisor, as well as founder and patron of the C.O.U.Q Foundation Inc., a charitable organization which funds medical, educational, and advanced scientific research at top university and academies around the world. For well over 50 years, Mr. Epstein has lived, and will continue to live, as a productive, philanthropic, and law-abiding member of society, not a recidivist criminal. Indeed, Mr. Epstein's guilty pleas to the instant offenses in 2008, when he was 55 years old, mark the first 5 K&E 17760332.2 EFTA00723412  KIRKLAND & ELLIS LLP and only criminal convictions of Mr. Epstein's life. Mr. Epstein's willingness to acknowledge his guilt and agree to leave the comforts of his home to serve a year behind bars, followed by a year of probationary supervision, is a testament to both his acceptance of responsibility for his crimes and his motivation to learn from his mistakes. While he admittedly lost his way, the harsh lessons of the past few years have, as observed by Dr. Alexander, have helped Jeffrey Epstein refocus and recommit to directing his personal energies to productive experiences to the fullest extent possible. Mr. Epstein is not in any way a typical sex offender, and these personal strengths and attributes distinguish him as someone who is extremely unlikely ever to commit another sexual offense. III. Under the SORA Risk Assessment Instrument, Jeffrey Epstein Should Be Adjudicated a Level 1 Offender. A. Based on the Relevant Facts Supported by Clear and Convincing Evidence, Jeffrey Epstein Falls Squarely within Level 1 As set forth in the completed SORA Risk Assessment Instrument on the following two pages, a proper calculation of Jeffrey Epstein's risk assessment under SORA, based upon the credible evidence of registerable activity that can foreseeably be proven by clear and convincing evidence' and the offenses for which Mr. Epstein was convicted, places Mr. Epstein squarely within the category of Level 1. This is a proper evaluation of the actual risk of reoffense and threat to society posed by Mr. Epstein. And not surprisingly, it is entirely in line with the evaluations of the other jurisdictions that have already considered Mr. Epstein's risk level under their own sex offender reporting schemes. For each of the calculations in the following table, a brief explanation of the scoring is provided, making reference in Section I, Current Offense, to the relevant aspects of the offenses included within the instant disposition. Because Mr. Epstein has no prior criminal convictions or acts of sexual misconduct, and does not use (much less abuse) drugs or alcohol, he scores zero with respect to Section II, Criminal History. Similarly, given his acceptance of responsibility for his crimes, his successful completion of incarceration without incident and full compliance with the terms of probation without incident, and satisfactory participation with post-sentencing treatment, Mr. Epstein also scores zero for Section III, Post-Offense Behavior. Finally, Mr. Epstein scores zero for Section IV, Release Environment, as he is gainfully employed and lives and works in appropriate environments that do not provide him with inappropriate access to minors, as ordered by the Court. None of the overrides set forth in SORA apply to Jeffrey Epstein. 1Of course, the assessment in the attached table reflects counsel's best preliminary judgment at this time, but in no way should be deemed a concession as to certain facts and SORA calculations or a waiver of any arguments that may be made to challenge a risk assessment, as counsel deems appropriate. 6 K&E 17760332.2 EFTA00723413  KIRKLAND & ELLIS LLP SORA Risk Assessment Instrument for Jeffrey Epstein RISK FACTOR VALUE SCORE EXPLANATION I. CURRENT OFFENSE(S) 1. Use of Violence There were no credible allegations of forcible Used forcible compulsion +10 compulsion, physical injury, or dangerous 0 weapon made against Epstein under either of Inflicted physical injury +15 the Florida charges for which Epstein was Armed with dangerous +30 convicted. instrument 2. Sexual Contact with Victim Epstein scores 10 points for allegations that Contact over clothing +5 he touched the body of AD during a massage while she was still 16. There is no sexual Contact under clothing +10 X 10 intercourse, criminal sexual act ("deviate Sexual intercourse, criminal +25 sexual intercourse") or aggravated sexual sexual act ("deviate abuse alleged against Epstein under either of sexual intercourse") or the Florida charges for which Epstein was aggravated sexual abuse convicted. 3. Number of Victims There is only one victim (i.e. woman under Two —20 0 the age of 17) alleged in connection with the reportable crime for which Epstein was Three or more +30 convicted. 4. Duration of Offense Conduct There is no credible evidence that Epstein with Victim 0 engaged in three or more acts of sexual Continuing course of sexual —20 contact with AD over a period of at least two misconduct weeks during the time when she was under 17. See Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Comment 2006 at 10, "Factor 4." 5. Age of Victim Epstein scores 20 points for allegations that 11 through 16 +20 X 20 he procured the prostitution services of AD when she was less than 17. 10 or less, 63 or more +30 6. Other Victim Characteristics There is no evidence that any of the women Victim suffered from mental +20 0 whom Epstein procured for prostitution disability or incapacity or from suffered from any mental disability, physical helplessness incapacity, or physical helplessness. 7. Relationship with Victim Epstein scores 20 points for allegations that Stranger or established for +20 X 20 he did not know AD prior to procuring purpose of victimizing or prostitution services from her when she was . rofessional relationshi . less than 17. II. CRIMINAL HISTORY 8. Age at First Act of Sexual Not applicable. Misconduct 0 20 or less +10 9. Number and Nature of Prior Not applicable. There is no credible Crimes evidence that Epstein has ever been 7 K&E 17760332.2 EFTA00723414  KIRKLAND & ELLIS LLP Prior history/no sex crimes or +5 0 convicted of a crime. felonies Prior history/non-violent felony +15 Prior violent felony or +30 misdemeanor sex crime or endangering welfare of a child 10. Recency of Prior Offense 0 Not applicable. Less than 3 years —10 11. Drug or Alcohol Abuse Not applicable. Epstein does not drink History of Abuse +15 0 alcohol or use drugs. COLUMNS 1-11 SUBTOTAL 50 III. POST-OFFENSE BEHAVIOR 12. Acceptance of Responsibility Epstein has fully accepted responsibility for Not accepted responsibility —10 his conduct. 0 Not accepted responsibility / —15 refused or expelled from treatment 13. Conduct While Confined / Epstein successfully completed his one-year Supervised 0 period of incarceration and one-year period Unsatisfactory +10 of probation. Unsatisfactory with sexual +20 misconduct IV. RELEASE ENVIRONMENT 14. Supervision Epstein was released from jail with Release with specialized 0 appropriate supervision and participated in supervision 0 therapy with a clinical psychologist. Release with supervision +5 Release without supervision +15 15. Living / Employment Situation Epstein's living and employment situations Living or employment +10 0 are appropriate, as he does not live or work inappropriate with or around minors. COLUMNS 12-15 SUBTOTAL 0 COLUMNS 1-11 SUBTOTAL 50 TOTAL RISK FACTOR SCORE 50 (add 2 subtotals) i 2 3 Level I (low) = 0 to +70 Level 2 (moderate) = +75 to +105 Level 3 (high) = +110 to +300 8 K&E 17760332.2 EFTA00723415  KIRKLAND & ELLIS LLP Of course, it bears noting that even should an alternative risk calculation be made under the factors set forth by the SORA risk assessment instrument, resulting in a total above the Level 1 ceiling of 70 points, the SORA statute and Guidelines grant discretion to depart from the calculation. In other words, regardless of the actual numerical calculation, the District Attorney may ask the Court to exercise its discretion and appropriately designate Mr. Epstein a Level 1 offender to reflect the negligible risk of future harm that he poses to the community. As noted in the Commentary to the Risk Assessment Guidelines: The ability to depart is premised on a recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Not to allow for departures would, therefore deprive the Board or a court of the ability to exercise sound judgment and to apply its expertise to the offender. Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Commentary (2006) at 4, ¶ 5; see also People v. Ferrer, 69 A.D.3d 513, (1st Dept. 2010) (observing "the risk level designated in the RAI is merely presumptive, and a court may depart from it as a matter of discretion") (citing People v. Mingo, 12 N.Y.3d 563, 568 n.2 (2009); People v. Johnson, 11 N.Y.3d 416, 418, 421 (2008)). As noted above, Jeffrey Epstein presents a negligible risk of reoffending, and indeed, justice demands that his SORA designation reflect that fact. B. The Level 3 Calculation by the Board Is Not Supported by Facts or the Law Curiously, the reviewer from the Board of Examiners of Sex Offenders recommended that Jeffrey Epstein be designated a Level 3 offender, notwithstanding the absence of any key factors that suggesting that he might pose a dangerous risk of reoffense or significant harm to society. Upon closer inspection, the Case Summary accompanying the Board recommendation reveals that the reviewer improperly considered and elaborated upon a host of unsupported hearsay allegations from an 86-page police report that has been proven materially false in numerous key respects and was largely discredited by prosecutors. This is patently improper under SORA, as the Guidelines direct that only "reliable hearsay evidence" may be considered and points should not be assessed for a factor "unless there is clear and convincing evidence or the existence of that factor." See Correction Law §§ 168-d(3), 168-n(3); Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Commentary (2006) at 5, ¶ 7; In addition, the SORA Guidelines explicitly provide, "The fact that an offender was not indicted for an offense may be strong evidence that the offense did not occur." Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Commentary (2006) at 5, ¶ 7. Here, the Board reviewer completely ignored the fact that Epstein was only convicted of non-violent offenses related to consensual prostitution activity, and instead scored Mr. Epstein for "forcible compulsion" by manufacturing a claim -- not even contained in the police report -- of "forcible rape" of a "16-year-old victim." Significantly, the allegations of this "victim" -- who was never able to state with certainty in her discredited account to police that she was under 9 K&E 17760332.2 EFTA00723416  KIRKLAND & ELLIS LLP 18 at the time she had intercourse with Epstein and who only agreed to speak with detectives in an effort to curry favor with prosecutors after she was arrested for drug possession -- were not prosecuted at all. [Check these facts.' Similarly, notwithstanding SORA's clear direction about the quantum of evidence required to support scoring for a given risk assessment factor, the reviewer scored Mr. Epstein for "prior criminal history" while at the same time acknowledging the utter lack of "specific information" about an unexplained 1973 non-U.S., potentially non- criminal offense. [Should this be omitted?' The reviewer's willingness to assess Mr. Epstein points based on speculation that falls far short of "clear and convincing evidence" is at best improper, and at worst, suspect. Perhaps more egregious than the reviewer's indifference to the legal standard of evidence required to score an offender under SORA is the utter lack of rigor that the reviewer demonstrated in analyzing the allegations against Epstein. The "lump it all together" summary submitted in support of the reviewer's Level 3 recommendation makes no attempt to separate allegations concerning potentially registerable offenses from alleged descriptions of non-violent sexual activity among consenting adults. In fact, the vast majority of allegations contained in the discredited police report involve women who were aged seventeen and above, or women who were unable to specify their ages and/or the timing of certain activities in which they claim to have willingly participated. Such allegations certainly are not a proper basis for assessing Mr. Epstein's risk level and supposed danger to society for purposes of a SORA determination. While case summaries prepared by the Board of Examiners of Sex Offenders with the knowledge that they will be relied on by courts generally constitute "reliable hearsay" in SORA hearings, the New York Court of Appeals has held that a Board case summary "may be rejected when it is unduly speculative or its accuracy is undermined by other more compelling evidence." People v. Mingo, 12 N.Y.3d 563, 5_ (2009). Here, the case summary prepared by the Board reviewer should be summarily rejected as unduly speculative, unreliable, and plainly inaccurate. Indeed, the reviewer who completed Mr. Epstein's case summary betrayed an improper bias against what the reviewer perceived to be Mr. Epstein's personal -- but legal -- sexual preferences for women between the ages of 17 and 20 by offering the inflammatory, groundless, and thoroughly subjective contention that "Jeffrey Epstein used his wealth and power" in such a way so that he could "take advantage of many teenage girls to satisfy his own sexual perversions." See Case Summary at 2. Such skewed, conclusory personal opinion has no place in a legal risk assessment instrument. In short, the Level 3 recommendation of the Board in this case is legally and factually insupportable and should be wholly disregarded. To attempt to defend such a baseless risk assessment would necessarily involve a lengthy and involved evidentiary hearing, as the unreliability of the hearsay allegations contained in the police report and taped witness interviews in this matter have been demonstrated time and again in the five-year history of this case. But more to the point, the Board's recommendation completely distorts the record and does not reflect an accurate and reasoned evaluation of the actual risk posed to the People of the State of New York by Jeffrey Epstein. Mr. Epstein hardly represents the "worst of the worst" of 10 K&E 17760332.2 EFTA00723417  KIRKLAND & ELLIS LLP sex offenders required to register, and for this reason alone, the Board's recommendation should be rejected. IV. A Designation of Level 1 Under SORA Will More Than Adequately Protect the People of the State of New York from Any Negligible Threat Posed by Jeffrey Epstein To come full circle, the District Attorney's Office should take comfort that intentions of SORA will be fully realized by imposing on Jeffrey Epstein a Level 1 designation for his Florida convictions. The touchstone for assigning a proper SORA designation is whether the offender is prone to reoffend, and an evaluation of the relevant factors of his offenses, coupled with information about Mr. Epstein's background and circumstances, should lead to the inescapable conclusion that Jeffrey Epstein is not the typical Level 2 or 3 sex offender that the District Attorney's Office regularly encounters, nor is he the "wolf in sheep's clothing" who poses a latent threat to the unwary. Rather, Mr. Epstein is an accomplished, financially successful mature businessman in the public eye who got a carried away in his extravagant self-indulgence, and as a result, made bad choices that will haunt him for the rest of his days. Under New York law, as a Level 1 sex offender, Jeffrey Epstein will be required to register his personal information with local New York law enforcement officials, and for a period of twenty years, provide annual verification of his residence, make timely updates of any change of address, and renew his photograph on file every three years. (At 57 years old, even as a Level 1 offender, Mr. Epstein is likely to have to register with authorities in New York for most if not all of his remaining years.) In addition, during the period of his registration, law enforcement officials will be able to disseminate this personal information about Mr. Epstein as they deem appropriate in their discretion. See Correction Law § 168-1(6)(a). Of course, this is in addition to the reporting requirements with which Mr. Epstein must comply in Florida, the state where he spends the majority of his time. In short, designating Jeffrey Epstein with Level 1 SORA designation will provide the People of the State of New York with full and adequate protection against the virtually non- existent risk of reoffense that Jeffrey Epstein poses, particularly given the relatively short amount of time that Mr. Epstein spends in the city and in the state. To require him to comply with any more stringent demands under SORA would be to squander the City's resources to contain a risk of reoffense that does not exist. Moreover, imposing the more severe reporting requirements of a higher sex offender risk designation upon Jeffrey Epstein would not serve the ends of justice and the protective -- not punitive -- goals which SORA is intended to promote. 11 K&E 17760332.2 EFTA00723418